R v Brown

[1996] QCA 563

[1996] QCA 563

COURT OF APPEAL
PINCUS JA
THOMAS J

DOWSETT J

CA No 413 of 1996
THE QUEEN
v.

NOEL PETER BROWN Applicant

BRISBANE
..DATE 13/11/96
PINCUS JA: This is an application for leave to appeal against
sentence. The sentencing Judge, Judge McMurdo, sentenced the
applicant for the offence of assault occasioning bodily harm, in
the District Court. Her Honour imposed a sentence of three
years probation and recorded a conviction.

Mr Hamlyn-Harris, who appears for the applicant, makes no complaint of the order for the probation, but says that it was beyond the scope of the District Court Judge's discretion to record a conviction. He frankly confesses that he is unable to point to any specific error made by Her Honour, but his contention is that the recording of a conviction was so plainly erroneous a decision that it must have been infected by error and should be set aside.

The circumstances were that the applicant and the complainant, his wife, who had been married for 30 years, were having some marital difficulties. The applicant became upset about what clearly seems to be quite a trivial matter and began to slap her. The complainant struck the applicant with one of the plastic bottles which had been the source of the argument and ran out of the house. The applicant followed slappping her, and to teach her, as he said, he punched her in the face. There is some dispute as to how the punch was effected, but it was obviously quite a hard punch, as will appear from my description of the outcome. There was soft tissue damage and a dislocation of the nasal septum and also damage to teeth. Exhibit 2 which was tendered before the Court below shows that the complainant, having suffered her injury in October 1993, was subsequently admitted to the Mater Private Hospital for an operation on her

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nasal septum, on which occasion she was in hospital for five
days. She subsequently had to have some dental work to repair
her teeth which cost almost $1,000. Towards the end of 1994 she
went into hospital for further surgery on her nose and on that
occasion took two weeks off work. In total, she said, she lost
six weeks work. The incident, she says, has had an effect on
her memory. It seems very improbable that it is a physical
effect, but presumably it is a psychological effect. It seems
clear the the blow caused physical damage and also was very
upsetting to the complainant.

According to the information placed before the Judge below, the complainant suffered mental and emotional harm. She suffered the indignity of continually having to blow her nose and breathe through her mouth. She had to sleep with her mouth open and developed a snoring habit; her sleep patterns had altered. She had lost a job as a result. From Exhibit 2 it appears that she has become frightened of her husband. Divorce proceedings have been instituted.

The assault was not a minor one and (as was pointed out during the course of the hearing) in view of the consequences of it, it is possible that the applicant might have been charged with and convicted of a more serious offence of grievous bodily harm. Nevertheless, we must put that aside and look upon it as merely an offence of assault occasioning bodily harm.

The essential argument advanced by Mr Hamlyn-Harris on behalf of the applicant is that in view of the good impression which the 131196 T6/TW M/T COA283/96

applicant has made upon others, as evidenced by the excellent references which were tendered on his behalf; in view of the fact that he has been involved in good Christian work and is generally speaking an excellent person, he should not suffer the indignity of a recording of a conviction in respect of this matter.

It has been pointed out that the case is not one in which it is suggested that the recording of a conviction will lose the applicant his job, or that it will have any immediate economic effect. The suggestion which was made below was that the applicant's ability to travel in missionary work might be affected by a conviction.

The circumstances, then, are that a fairly serious assault on his wife has resulted in substantial harm to her and the risk, as it appears to me, of adverse consequences from an assault, must be shared by the perpetrator and the victim. Unfortunately for the victim it has had a pretty bad effect and, unfortunately for the perpetrator, it has produced the consequence that he has a conviction against his name.

I am far from satisfied that the learned primary Judge was in error in recording a conviction; nor does it appear to me that Her Honour, as Mr Hamlyn-Harris insists, was clearly wrong in doing so. I would, for myself, refuse the application for leave to appeal against sentence.

THOMAS J: I agree.
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DOWSETT J: I agree and would add only two comments. The first is that I do not wish to be taken as necessarily agreeing that a probation order was appropriate for a man of this age. However that matter has not been canvassed in the course of the application.

Secondly, I feel compelled to say that I find it difficult to understand how the bringing of this application could be seen as a proper use of scarce legal aid resources.

PINCUS JA: The order will be as I have indicated.

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